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U.S. v. PEPPIN

April 7, 2005.

UNITED STATES OF AMERICA,
v.
REJEAN PEPPIN and GILLES MERCIER, Defendants.



The opinion of the court was delivered by: DAVID HURD, District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

  Defendants were indicted on charges relating to the possession and sale of marijuana under 21 U.S.C § 841(a) and (b)(1)(B). Defendant Rejean Peppin (`Peppin") was also indicted for bribery, in violation of 18 U.S.C. 201(b)(1)(A) and (C). Defendant Gilles Mercier ("Mercier") filed an omnibus pretrial motion seeking dismissal of the indictment as it pertains to him based on violations of the Speedy Trial Act ("Speedy Trial Act" or the "Act"), 18 U.S.C. § 3161, the Sixth Amendment and Fed.R.Civ.P. 48(b), and to suppress physical evidence pursuant to the Fourth Amendment.*fn1 The government opposes. Oral argument was heard on January 28, 2005 in Albany, New York. Decision was reserved.

  II. FACTS

  On May 13, 2003 Mercier was arrested near Plattsburgh, New York, after police found more than 100 pounds of marijuana in his car. A local law enforcement officer claims Mercier was stopped for using a cell phone and making an improper left hand turn. He was alone in the car. Mercier denies both allegations. He was arraigned the next day and charged with felony possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841. He was in detention until released after a hearing held on May 23, 2003. Peppin was arrested and charged with intent to distribute on June 9, 2003, when he was also alone and stopped with more than 100 ponds of marijuana in his car.

  The government did not take any action to follow up on Mercier's arrest. There were no stipulations sought, motions filed, or fruits of discovery provided. The case was assigned to the same Assistant U.S. Attorney ("AUSA") throughout, who concedes that the delay in proceeding to indictment is attributable to the government.

  Mercier was indicted August 11, 2004, fifteen months after his arrest. The indictment lists five counts. Count 2 relates the charge in the original criminal complaint against Mercier, possession of marijuana with intent to distribute on May 13, 2003, but also names Peppin. Counts 1 and 3 are new charges and also name both defendants. Count 3 relates the original complaint against Peppin for possession of marijuana with intent to distribute on June 9, 2003. Count 1 charges Mercier and Peppin with conspiracy to possess and distribute the marijuana from May through June 2003 — a time period which includes the arrest dates in Counts 2 and 3. Counts 4 and 5 stand only against Peppin for alleged bribery of U.S. Customs Inspectors on the above dates.

  III. DISCUSSION

  A. Speedy Trial Act and Count 2

  The Speedy Trial Act requires that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161 (b). If "no indictment or information is filed within the time limit . . . such charge against that individual contained in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162 (a)(1). The government concedes that the Act has been violated as to Count 2 and that the charge must be dismissed. (Docket No. 18, U.S. Opposition Mem. p. 10) The question is whether the charge should be dismissed with or without prejudice. The defendant seeks a dismissal with prejudice, and the government requests dismissal without prejudice. The statute does not establish a preference between the two. United States v. Coleman, 170 F. Supp. 2d 321, 324 (N.D.N.Y. 2001) (citing United States v. Taylor, 487 U.S. 326, 334 (1988).

  The determination is made through consideration of "among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of [the Speedy Trial Act] and on the administration of justice." 18 U.S.C. § 3162 (a)(1); Taylor, 487 U.S. at 336 (noting that district courts must carefully consider each factor and clearly articulate their effect). The presence or absence of prejudice to the defendant, though not dispositive, is also relevant. Id. at 334.

  1. Seriousness of the offense

  Mercier is accused of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). If convicted, the statute proscribes a minimum five year prison sentence. 21 U.S.C § 481 (b)(1)(B). Courts are reluctant to declare any federal crime, especially felonies involving drugs, as "not serious," and thus drug crimes are regularly, almost automatically, deemed serious offenses for purposes of the § 3162(a)(1). "Any charge related to drug transactions must be considered serious today." United States v. Giambrone, 920 F.2d 176, 178-179 (2d Cir. 1990) (case involved distributing and conspiring to distribute eight ounces of cocaine); see Taylor, 487 U.S. at 338 (narcotics charges involving 400 grams of cocaine "serious"); United States v. Simmons, 786 F.2d 479, 485 (2d. Cir. 1986) (possession of six glassine envelopes containing heroin with intent to distribute); United States v. Clymer, 25 F.3d 824 (9th Cir. 1994) (conspiracy to distribute and aiding and abetting manufacture of methamphetamine); United States v. Phillips, 775 F.2d 1454, 1456 (11th Cir. 1985) (importing marijuana); United States v. Rodriguez, 824 F. Supp. 657, 659 (W.D. Tex. 1993) (conspiracy to possess with intent to distribute marijuana).

  The seriousness of the charge is considered for purposes of weighing it against the seriousness of the delay and its effects. See Simmons, 786 F.2d at 485. This inquiry is obviously intended to be more complex than awarding a "yes" or "no" determination of seriousness. "Any felony charge is serious. But there are degrees of seriousness." United States v. Mancuso, 302 F. Supp 2d 23, 26 (E.D.N.Y. 2004). Mercier argues that the offense is not serious enough to justify overlooking the fifteen month delay. The drug at issue is marijuana — an arguably less serious drug than heroin, cocaine or methamphetamine. However, the charge is considered serious and this factor weighs against dismissal with prejudice.

  2. Facts and circumstances of the delay

  The main considerations here are the length of delay and the reasons for it. Fifteen months passed between the May 13, 2003 arrest and the August 11, 2004 indictment. The thirty day requirement may be extended, or rather time may be excluded from the ticking of the Speedy Trial clock, for several reasons listed in the statute. See 18 U.S.C § 3161(h); see e.g. United States v. Zedner, No. 04-CR-0821, 2005 U.S. App. LEXIS 3809 (2d Cir. March 8, 2005) (most of seven year gap between indictment and trial excluded from the running of the time clock). The government does not argue that any of those circumstances apply here, thus the full fifteen months is measured as a ...


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